April 25, 2011

The Dangers of Manual Self Collections in EDiscovery – Claims of “Computer Illiteracy” are Rejected by the Court

In Green v. Blitz U.S.A, (E.D, Tex Mar. 1, 2011), a recent product liability case, it was discovered after trial that the defendant withheld critical, relevant ESI. As a defense, the defendant's employee (a key witness) in charge of collecting the ESI claimed "computer illiteracy" as the primary reason for nondisclosure of the ESI in question. Self collection was at the root of the culpable behavior. The Plaintiff sought to re-open her lawsuit despite a prior settlement, once she suspected that the defendant had failed to produce relevant ESI. During the subsequent investigation, the court found a number of issues with defendant’s behavior.

The employee “solely responsible for searching for and collecting documents relevant to litigation” issued no litigation hold, conducted no electronic word searches for emails, and made no effort to speak with defendant’s IT department regarding how to search for electronic documents and in fact, requested employees to delete e-mails on several occasions. A further complication to the claim of the employee revealed that he was closely tied to the research and development of the “flame arresters” that were at issue in this exploding gas can case and yet failed to include the search term “flame arrester” during the collection process. The court noted that some of the smoking gun emails not only contained this search term in the body of the emails, but in fact appeared in the title line of the emails.

The Court found that the defendant had committed a number of discovery abuses, including not producing relevant ESI and failing to institute a litigation hold. The court chose not to grant plaintiffs a new trial but ordered the defendant

• to pay $250,000.00 in civil contempt sanctions to the plaintiff in this case• to provide a copy of the court’s order to the plaintiffs “in every lawsuit proceeding against it” for the prior two years and • to file the court’s order in every case that defendant is involved in for the next 5 years.

What is the Take Away Lesson in this Case?There are any number of reasons why this case should be a warning shot to be heeded by both corporations and law firms. I believe that one of the most important lessons to be taken from this example is the danger of relying on custodians to direct an ESI collection. The possible problems range from the most innocent of issues, a custodian that simply can’t remember if there is relevant ESI to be produced, all the way to the intentional non-production or destruction of ESI material by the very custodian that produced the material.

Current best practices for ESI collection have surpassed this type of manual collection. Technology makes it quick and easy to conduct complex searches across large databases thourgh software that performs Early Data Assessement. The Sedona Conference has concluded that “[i]n many settings involving electronically stored information, reliance solely on a manual search process for the purpose of finding responsive documents may be infeasible or unwarranted. In such cases, the use of automated search methods should be viewed as reasonable, valuable, and even necessary.”

When coupled with independent professionals who use the technology on a daily basis, you can assure the courts that you have taken the reasonable steps that they expect in today’s litigation, while protecting yourself against sanctions.